Cass R. Sunstein, Injury In Fact, Transformed, 2021 Sup. Ct. Rev. 349 (2022).
Abstract: Since 1970, the law of standing has been dominated by the "injury in fact" requirement. That requirement was first announced in an opinion by Justice William O. Douglas, who clearly sought both to expand the category of people entitled to challenge government action and to simplify the standing inquiry in significant ways. Justice Douglas made no effort to root that requirement in the text or history of the Constitution, or indeed in any of the Court's precedents. As far as constitutional law is concerned, the injury-in-fact test was made up out of whole cloth. It appears to have come from a 1955 law review article by Kenneth Culp Davis. Davis himself purported to interpret the Administrative Procedure Act (APA), not the Constitution. His interpretation of the APA was an egregious blunder. Over the course of the last half-century, the injury-in-fact test has been transformed from a bold effort to expand the category of persons entitled to bring suit into an equally bold effort to achieve the opposite goal, by understanding judicially cognizable injuries largely by reference to the common law (and the Constitution), and by severely restricting Congress' power to create new rights and to allow people to sue to protect those rights. The transformation is lawless. It is disconnected from standard sources of constitutional law. There is an irony here, and it is in the foreground, not in the background. The administrative state arose out of grave dissatisfaction with private law principles. In diverse ways, it was founded on a recognition that various interests beyond those protected by the common law (including those of consumers, investors, workers, environmentalists, and victims of discrimination) deserve some kind of legal protection. To be sure, the interests of the objects of regulation, armed with private-law rights, continued to matter, and would be a legitimate basis for a lawsuit. But in multiple domains, Congress explicitly decided that the beneficiaries of regulatory protection also ought to have access to court to protect their statutory rights. And even when Congress did not make that explicit decision, the relevant provision of the APA could easily be read to authorize such access, at least in certain circumstances. The irony is that the Court is now building the public law of standing directly on the private-law foundations that Congress rejected, as a matter of principle, in creating modern statutory programs and new statutory rights. As we shall see, we are witnessing a form of " Lochnering." My central goal in this Article is to offer a compressed sketch of the rise and the evolution of the idea of "injury in fact" in federal standing law. It is a truly astonishing tale. The brief sketch could, of course, be a lengthy narrative; my hope is that the main lines of the tale, and its astonishing nature, will emerge more clearly if presented in a compressed fashion. I also hope that an understanding of the novelty of the injury-in-fact requirement, and its peculiar origins, might help to cast in bold relief the even newer effort to build standing principles on traditional private rights, and to expose the oddity of the associated idea that Congress lacks the authority to create rights that lack clear analogues in the common law.